On July 5, 1973, we held a consolidated hearing to consider motions for both preliminary and permanent injunctions. At the close of the testimony and arguments we refused to issue the injunctions and ordered the complaint dismissed. This written opinion will serve to amplify our oral opinion given from the bench. We stated from the bench that there were two problems involved, first, whether the action taken by the baseball conference was taken under color of state action and second, whether or not there had been unconstitutional discrimination. We will deal with the problems in that order.

On April 6, 1973, Mr. and Mrs. William Magill took their 10 year old daughter Pamela, allegedly a good baseball player, to a meeting in a Ben Avon Heights school to enroll her in the 1973 summer baseball programs of the ABC. The Magills completed an application and paid the $7.00 registration fee.

The following day an official of the baseball conference contacted William Magill and told him that Pamela would not be eligible to participate because the program was limited to boys. At Magill's request the matter was discussed at a meeting of the ABC Board of Directors and the directors unanimously voted to continue to limit the program to participation by boys only. The registration fee was subsequently returned to the Magills and this suit was instituted.

We note at the outset that it is agreed that Pamela has been denied the privilege of playing baseball in the conference because she is a girl and for no other reason. Sections 1983 and 1985 and the equal protection clause of the 14th Amendment, however, do not provide protection against all discrimination; only against discrimination which occurs under color of state law. The unlawful discrimination must result from the "(misuse) of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Henig v. Odorioso, 385 F.2d 491, 494 (3rd Cir. 1967) quoting from United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941). "Civil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings." Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). The 14th Amendment is directed only to state action and the invasion of the constitutional rights of one private individual by the actions of another private individual or private association is not within its purview. Williams v. Yellow Cab Co. of Pittsburgh, Pa., 200 F.2d 302 (3rd Cir. 1952); Civil Rights Cases, supra.

No clear rule exists to determine when there has been sufficient state involvement in private discrimination to meet the requirements of § 1983 and § 1985 of the Civil Rights Act. "Only by shifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961).

The discrimination involved here, was practiced by a private organization. We think that a shifting and weighing of the facts here compels the conclusion that the discrimination in no way arose under color of state law.

There are only four instances here which could be considered to constitute state action:

1. The state granted a charter to the Avonworth Baseball Conference.
*fn3"

Where, as here, the source of the alleged discrimination is a private organization the state must be "significantly involved" with invidious discrimination in order for the discriminatory action to fall within the ambit of the constitutional prohibition. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972); Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967). In discussing significant involvement the Court in Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966),
*fn5"
mentioned state "supervision, control, or management" of a private facility, and in Irvis the Court mentioned what it described as the "symbiotic relationship" between the private and public activities in Burton.6 We do not think the activities involved here rise to the level of maintaining "supervision, control or management" over the ABC, and the State-ABC relationship certainly in no way amounts to symbiosis.

It is true that the ABC has been chartered by the state. Merely acting under a state license, however, is not state action within the context of the Civil Rights Act. Moose Lodge No. 107 v. Irvis, supra ; Henig v. Odorioso, supra ; Weyandt v. Mason's Stores, Inc., 279 F. Supp. 283 (W.D.Pa.1968). We think this is especially true where the charter is neutral and non-discriminatory on its face.

The remaining state involvement is both so minimal and so wholly unrelated to the activities which gave rise to the alleged discrimination that we think it would be unrealistic to classify it as state action for purposes of the Civil Rights Act. There is no evidence that ACORD, the Avonworth School Board, the Avonworth Municipal Authority or Ben Avon Heights Borough in any way promoted, participated in, or encouraged the discrimination. They merely permitted the ABC to use on occasion the public facilities under their control. There is no evidence that any of the defendant organizations and bodies (except, of course, ABC) maintain a policy of sex discrimination and limit or restrict the use of their facilities on that basis. This is a situation wholly different from the facts of Burton and Evans. There the state agencies were actively engaged in establishing or maintaining facilities operated in a discriminatory manner.

In Bucha, et al. v. Illinois High School Association, et al., 351 F. Supp. 69 (N.D.Ill.1972) the court held the rule to be rational which prohibited girls competing with boys in interscholastic swimming. The court there took judicial notice of the records of men and women athletes at the Olympic games as evidence that men's record times are consistently better than women's and thus that men are generally faster and stronger in athletic competition than women. Citing Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971) the Court held that the relevant inquiry, respecting equal protection of the law, was whether the challenged classification was rational. For purposes of the sport of swimming a classification based upon sex was found to be rational.

Thus, it seems to us, the distinction for contact sports has been widely recognized.

We are aware of the holding of the Supreme Court in Frontiero et vir. v. Richardson, Sec. of Defense, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583, decided May 14, 1973, that sex is a suspect classification but that case involved the economic benefits to which a female army officer was entitled compared with those of a male army officer and we do not believe it controlling here.

Accordingly, we hold that sex is a rational distinction where a contact sport is involved. The complaint is therefore dismissed for this reason as well.

We do not believe it necessary to discuss the second reason assigned by the directors of ABC for refusing to allow girls to play on the boys' teams.

This opinion shall be deemed to comply with Rule 52. It is accordingly ordered that the complaint be dismissed.

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